UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-00552

____________________

IN RE: GREGORY SMITH,

Movant.

Motion for an Order Authorizing the United States

District Court for the Eastern District of

Louisiana to Consider a Successive Habeas Corpus

Application

(E-97-2841)

May 28, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Concerning the request by Gregory Smith, Louisiana prisoner

#92399, for leave, pursuant to the Antiterrorism and Effective

Death Penalty Act (AEDPA), Pub. L. 104-132, 110 Stat. 1214 (1996),

to file a successive 28 U.S.C. § 2254 habeas application in the

district court, the principal issue at hand is whether, as required

by AEDPA, 28 U.S.C. § 2244(b)(2)(A), Smith presents a new claim

that “relies on a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was

previously unavailable”. Because Smith does not do so, and because

he fails to satisfy AEDPA as to the other new claim presented

(concerning allegedly withheld exculpatory material), leave to file

the successive application is DENIED

.- 2 - I.

Smith was convicted in 1979 in Louisiana state court of second

degree murder and sentenced to life in prison. See State of

Louisiana v. Smith , 392 So. 2d 454 (La. 1980).

In 1997, Smith filed his fourt h federal habeas application.

The three prior filings are: G regory Smith v. Larry Smith

, No. 88-

1111 (E.D. La. 21 Nov. 1988) (dismissed/denied with prejudice on

the merits); Gregory Smith v. Ross Magio, Jr.

, No. 83-883 (E.D. La.

20 Apr. 1983) (dismissed/denied with prejudice); and Gregory Smith

v. Charles Foti, Jr.

, No. 79-4613 (E.D. La. 4 Mar. 1980)

(dismissed/denied without prejudice for failure to exhaust).

The district court construed Smith’s petition, in part, as a

moti on for authorization for that court to consider Smith’s

successive application. But, as the district court recognized,

under AEDPA, 28 U.S.C. § 2244(b)(3)(A), the decision whether a

successive § 2254 application may be filed in district court is

made instead by a court of appeals. Accordingly, pursuant to 28

U.S.C. § 1631, the district c ourt transferred the application to

our court for that filing-ruling. The district court ruled, by

implication, that the two claims presented in the application had

not been presented in a prior applica tion. S ee 28 U.S.C. §

2244(b)(1).

In accordance with detailed instructions provided by our court

to Smith, regarding the prerequisit es for being permitted under

AEDPA to file a successive application in district court, Smith- 3 -

fil ed a motion in this court for leave to so file. Attached to

that motion is the proposed petition, with supporting documents.

This matter was held in abeyance, pending our en banc review

in Humphrey v. Cain

, 120 F.3d 526 (5t h Cir. 1997), reinstated by

138 F.3d 552 (5th Cir. 1998) (en banc), because Smith’s reasonabledoubt-jury-instruction-issue was similar to one in Humphrey . Our

en banc court having ruled in Humphrey

, discussed infra

, we can now

decide whether Smith can file his successive application.

II.

Again, because Smith attempted to file the applicat ion in

1997, we must apply AEDPA in determining whether it may be filed.

See Lindh v. Murphy

,

____ U.S.

____, 117 S. Ct. 2059, 2063 (1997).

Section 2244(b) provides:

(1) A claim presented in a second or

successive habe as corpus application under

section 2254 that was p resented in a prior

application shall be dismissed.

(2) A claim presented i n a second or

successive ha beas corpus application under

section 2254 that was not presented in a prior

application shall be dismissed unless—

(A) the applicant shows that the claim

relies on a new rule of constit utional law,

made retroactive to cases on collateral review

by the Supreme Court, that was previously

unavailable; or

(B)(i) the factual predicate for the

claim could not have been discovered

previously through the exercise of due

diligence; and

(ii) the facts underlying the claim, if

proven and viewed in light of the evidence as

a whole, would be sufficient to establi sh by

clear and convincing evidence that, but for

constitutional error, no reasonable factfinder- 4 - would hav e found the applicant guilty of the

underlying offense.

In seeking leave to file his successive application, Smith

p resents two claims: for his trial for murder, the trial judge

instructed erroneously on reasonable doubt, and the p rosecutor

withheld exc ulpatory material from the defense. Based upon the

district court transfer order, discussed supra

, we assume that the

claims have not been “presented in a prior application”; had they

been, Smith could not file them again. S ee 28 U.S.C. § 2244(b)(1).

A.

According to Smith, the jury was instructed, in relevant part,

as follows:

If you entertain any reasonable do ubt as to

any fact or element necessary to constitute

the defendant’s guilt, it is your sworn duty

t o give him the benefit of that doubt and to

return a verdict of acquittal. Even where the

evidence demonstrates a probability of guilt,

yet, if it does not establish it beyond a

reasonable doubt, you must acquit the accused.

This doubt must be a reasonable one, that is,

one founded upon a real, tangible, substantial

basis, and not upon mere caprice, fancy or

conjecture. It must be such a doubt as would

give rise to a grave uncertaint y, raised in

your minds as to the unsatisfactory character

of the evidence; one that would make you feel

that you had not an abiding conviction to a

moral certainty of the defendant’s guilt. A

reasonable doubt is not a mere possible doubt.

It should be an actual or substantial doubt.

It is such a doubt as a reasonable person

w ould seriously entertain. It is a serious

doubt for which you could give good reason.

In Cage v. Louisiana

, 498 U.S. 39, 41 (1990), the Supreme

Court held that an instruction co ntaining similar language was- 5 -

unconstitutional, because it permitted finding guilt based upon a

degree of proof below that re quired by the Due Process Clause of

the Fourteenth Amendment. Smith maintains that, for purposes of §

2244(b)(2)(A), Cage announced a new rule of constitutional law made

retroactive to cases on c ollateral review by the Supreme Court,

that was previously unavailable.

It is undisputed that Cage announ ced a new rule of

constitutional law. See Sullivan v. Louisiana , 508 U.S. 275, 282

(1993) (denying right to beyond-reasonable-doubt-jury-verdict is

structural defect that takes away “basic protectio[n] whose precise

effects are unmeasurable, but without which a criminal trial cannot

reliably serve its fun ction”). Moreover, the C age -rule was

“previously unavailable” to Smith; his last § 2254 application was

denied in 1988, two years before the Supreme Court’s decision in

Cage

.

We must deny leave to file this claim, however, because Smith

fails to make a “prima facie showing”, as required by §

22 44(b)(2)(C), that the C age -rule has been “made retroactive to

cases on collateral review by the Supreme Court”, as required by §

2244(b)(2)(A). In so doing, we join those other circuits holding

that

an application to file a second or successive

habeas petition must point to a Supreme Court

decision that either expressly declares the

collateral availability of the rule (such as

by holding or stating that the particular rule

upon wh ich the petitioner seeks to rely is

retroactively available on collateral review)

or applies the rule in a collateral

proceeding.- 6 -

Rodriguez v. Superintendent, Bay State Correctional Ctr. , 1998 WL

119670 at *5 (1st Cir. 1998); see also In re Vial , 115 F.3d 1192,

1197 (4th Cir. 1997) (en banc) (“a new rule of constitutional law

has been ‘made retroactive to cases on collateral review by the

Supreme Court’ within the meaning of § 2255 only when the Supreme

Court declares the collateral availability of the rule in question,

either by explicitly so stating o r by applying the rule in a

collateral proceeding”); In re Hill , 113 F.3d 181, 184 (11th Cir.

1997) ( Cage -rule not applicabl e in successive habeas petition

because applicant failed to establish that Supreme Court has made

the new r ule of constitutional law retroactive to cases on

collateral review). In short, as the First Circuit held in

Rodrig uez , “[Smith] is unable to identify a Supreme Court edict

that renders Cage retroactively applicable to cases on collateral

review.” Rodriguez , 1998 WL 119670 at *7.

Like the First Circuit in Rodriguez

, 1998 WL 119670 at *7, we

cannot follow the approach utilized in Nevius v. Sumner , 105 F.3d

453 (9th Cir. 1996). It allowed a successive habeas application

which claimed that Cage was made retroactive by the Supreme Court

in Adams v. Evatt

, 511 U.S. 1001 (1994). N evius stated that,

although the court was not “intimating any view concerning the

merits of [the prisoner’s] Cage c laim, o r any view regarding

whether he has in fact met the requirements of 28 U.S.C. § 2244(b)

,

w e conclude that he has made ‘a prima facie showing t hat the

application satisfies the requirements of this subsection.’”

Nevius

, 105 F.3d at 462 (emphasis added) (quoting 28 U.S.C. §- 7 -

2244(b)(3)(C)). At the very least, this statement seems

inconsistent. Moreover, the ruling seems to disregard the plain

language of § 2244(b)(2)(A), which requires an applicant seeking to

present a new claim in a successive application to “show[] that the

claim relies on a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court”. Again, Smith

has not made the requisite prima facie showing.

In Humphrey

, our en banc court held that Cage -errors, as

clarified in Victor v. Nebraska

, 511 U.S. 1 (1994) (“proper inquiry

[in reviewing reasonable doubt instruction] is not whether

instruction ‘could have’ been applied in unconstitutional manner,

but whether there is a reasonable likelihood that the jury did so

app l y it”), qualify for retroactive application on collateral

review. H

umphrey

, 138 F.3d at 553 (5th Cir. 1998) (en banc). Our

en banc court relied upon the reinstated panel opinion, which held

that, consistent with Teague v. Lane

, 489 U.S. 288 (1989), “the

Supreme Court has made it plain that Cage-Victor errors fit with

the second Teague exception”, and are to be applied retroactively.

Humphrey , 120 F.3d at 529.

But, the § 2254 application in Humphrey was the first one in

that case and was filed p rior to the effective date of AEDPA.

Therefore, that application did not have to clear the “formidable

barriers erected by [§ 2244(b)(2)(A)]”, as does Smith. Id. at 529.

In short,“AEDPA sets tough standards that severely restrict state

prisoners ’ abilities to file second or successive habeas

petitions.” Rodriguez , 1998 WL 119670 at *7.- 8 -

Accordingly, our en banc decision in Humphrey does not control

whether, in the light of § 2244(b)(2)(A), an applicant can file a

successive § 2254 application.

In denying Smith leave to now file this Cage -rule claim, we

are neither presented with, nor do we intimate any view on,

whether, should the Supreme Court make Cage retroactive to cases on

collateral review, Smith can then file this claim. See 28 U.S.C.

§ 2244(b)(1).

B.

As for his claim that the State withheld exculpatory material

in violation of Brady v. Maryland

, 373 U.S. 83 (1963), Smith

presents a copy of the first, and perhaps second, page of a New

Orleans Police Department report. Smith contends it shows that the

arresting off icer had received information from another officer,

who in turn had received it from his confidential informant, that

someone else had committed the crime. Smith states that he did not

become aware of this until 1990, 11 years after his trial in 1979.

“A successful Brady claim must show (1) the prosecuti on’s

suppression of the evidence, (2) the favorableness of t hat

evidence, and (3) the materiality of that evidence.” U nited States

v. Green

, 46 F.3d 461, 464 (5th Cir.), cert. denied

, 515 U.S. 1167

(1995). Evidence is material only if a reasonable probability

exists that, had the evidence been disclosed, the result of the

proceeding would have been different. I d. And, if the defendant,

using reasonable diligence, could have obtained the information, a- 9 -

Brady claim does not arise. W illiams v. Scott, 35 F.3d 1 59, 163

(5th Cir. 1994), cert. denied , 513 U.S. 1137 (1995).

A fact-based claim of this type, presented for the first time

in a successive § 2254 application, must be dismissed unless “the

factual predicate for the claim could not have been discovered

previously through the exercise of due dilige nce”, and the facts

underlying the claim “would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense”. 28 U.S.C. § 2244(b)(2)(B)(i-ii).

Even assuming that Smith has discovered new evidence that was

unava ilable to him earlier, the submitted portion of the report,

which merely contains descriptive i nformation about the crime,

falls far short of satisfying § 2244(b)(2)(B)(ii).

III.

For the f oregoing reasons, Smith’s motion for leave to file

this fourth § 2254 application in district court is

DENIED.